The Ohio Supreme Court’s decision on JobsOhio doesn’t say anything about whether the legislature’s creation of that public-private entity was constitutional.
That question couldn’t be answered until the court decided who had the legal right to ask it. Ohio Public Radio's Karen Kasler explores that issue.
The court ruled 5-2 that because Progress Ohio and two Democratic state lawmakers have no personal stake in the law that created JobsOhio, they can’t challenge it. Progress Ohio and Michael Skindell and Dennis Murray, who were both state representatives at the time, had argued that they did have the right to sue for several reasons, one of them being taxpayer standing. Jonathan Adler is a professor at Case Western Reserve University School of Law, and he says the court’s decision is the right one.
“If you have broad taxpayer standing or even broader public rights standing as has been argued by the plaintiffs here, you basically allow for every political dispute to become a judicial dispute. And that’s corrosive both to our political system and to the judicial process.”
The question of legal standing has come up in several cases, including one before the Ohio Supreme Court that was waiting on this ruling. It’s a lawsuit over Gov. John Kasich’s decision to allow video slot machines at horseracing tracks filed by the conservative Ohio Roundtable. David Zanotti is the president.
“We have a great amount of sympathy for the folks at Progress Ohio because standing is a very serious question, and we respect the questions that Progress Ohio is bringing to the table. And those questions really have to do with accountability in government, and what happens when one branch exceeds their constitutional authority.”
But the majority justices also said their decision doesn’t mean no one has standing, and that there are several people and groups that were identified in the case which could potentially bring a claim against the law – and the justices write that the courthouse doors are open to them. But Zanotti is concerned about how they might determine what defines an injured party in a given challenge to a state law, policy or constitutional issue.
“So the question of standing becomes you have to be uniquely harmed, or concretely harmed, or they add all these adverbs to the nature of harm and say that the courts exist to permit standing only to people that have unique, concrete, specific, verifiable, whatever terms in regards to standing.”
But Adler says the decision may not have that long a reach.
“There’s no one who had standing before this decision that’s going to lose it as a result. But on the other hand, various individuals or groups would have had trouble establishing standing before this decision – the decision is not going to help them either.”
Justices Paul Pfeifer and William O’Neill broke with the majority, which isn’t much of a surprise to many court watchers given their pointed questions during the arguments in the case in November. Pfeifer’s dissent includes some strong words for his colleagues in the majority, and noted that this is the third time the court has been asked about the constitutionality of JobsOhio. Though the majority writes that Pfeifer is incorrect, he says this decision ensures they won’t ever answer it. He also writes, “Ohioans will never know whether their government is violating the constitution. Apparently, they do not deserve to know.” O’Neill, the only Democrat on the court, writes that hundreds of millions of dollars are being funneled into a dark hole, and – quoting here – “it is simply shameful that the court refused to do its job.”